Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch (3 slightly different reports)

Appears that Justice Akbarali is being activist, not only in her interpretation citizenship rights but also with respect to setting an unreasonably short timeline for compliance.

She certainly would know that developing, passing and implementing legislation takes longer than six months and a month extension, over the summer months when Parliament sitting, is meaningless. Given the possibly large numbers involved and the policy and operational implications (judges tend to underestimate the latter), thorough review will be needed.

The numbers we have are provided that the advocates indicate a likely upper limit of 1.5 million, not negligible in terms of impacts. It is striking that IRCC has not yet provided its estimates of the number of persons affected, including those of women first-generation born abroad of child bearing age (estimates of the total number of expatriates are imprecise with StatsCan settling on 4 million).

Of course, like so many of these initiatives, there is an assumption than many, if not most, “lost Canadians” want to be “found.” Whenever the government makes a change to address “lost Canadians” or expand voting rights to expatriates, the actual numbers are relatively small as seen through citizenship proofs and expatriate voting rights.

More to come over coming months:

Starting with The Star:

The federal government has been given a last-minute reprieve to roll out a new law to restore the citizenship rights of “lost Canadians” born outside Canada.

That’s despite its failure to have a proper plan in place to address urgent cases affected by the delay.

Six months ago, Ottawa was ordered by an Ontario court to repeal what’s known as the “second-generation cut-off” rule and amend the current Citizenship Act by June 20, after a judge ruled it’s unconstitutional for Canada to deny automatic citizenship to children born abroad because their parents also happened to be born overseas.

On Wednesday, at the eleventh hour, the government pleaded for a six-month extension of the deadline, arguing that it had already introduced an amendment bill, C-71, in May to confer citizenship to those affected by the current law and address the legislative gaps to ensure others won’t fall through the cracks in the future.

Officials contended that the legislative process takes time and it is a “complex undertaking” that would involve preparing training materials for immigration staff, forms, website pages and co-ordination, among other things.

However, Judge Jasmine Akbarali only agreed to grant the government seven weeks’ relief, until she can reassess the progress made to create an interim plan to handle urgent citizenship requests by lost Canadians and to push for the passage of Bill C-71 by Dec. 19.

In reaching her decision, the judge said she had to balance the government’s need to properly fix the problems and the hardship affected Canadians will continue to suffer as a result of the delay.

“While it has been working on the legislation, the respondent has not proceeded with any sense of urgency to rectify the unconstitutional aspects of the legislation,” Akbarali in her decision released Wednesday evening. 

“It does not propose an effective mechanism to address the hardship that a further six-month suspension will cause to people whose constitutional rights are being violated day after day.”

An estimated 170,000 women in the first generation born abroad, who are in the age range at which people often choose to start families, are still being affected by the current law when making those important life decisions, the judge noted.

In chiding the government for its tardiness, the court referred to a couple of other bills that officials successfully pushed through recently, including Bill C-62, an Act respecting medical assistance in dying, which went from first reading to royal assent within the month of February.

“There is no explanation as to why this bill is languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire,” said Akbarali.

“The unconstitutional law remains on the books, and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved.”

She said it’s insufficient for the government to grant citizenship to lost Canadians at the immigration minister’s discretion, as proposed, during the interim before the amended bill is enacted, supposedly by Dec. 19, because that process is “ineffective, and also poorly communicated.”

Toronto lawyer Sujit Choudhry, who represented the six lost Canadian families in the constitutional challenge, said his clients are pleased with the court decision, which also included granting three of the families the sought-after citizenship and $35,064.47 in partial indemnity costs.

“They now have the full benefit of the court’s judgment,” Choudhry said in an interview. “They are not second-class citizens anymore. It was very important for them that there be accountability. They led this fight not just for themselves, but for everyone like them.”

The parties are to reconvene on Aug. 1 to hear the government’s updates on its interim plan to deal with pending citizenship applications of lost Canadians and steps to pass Bill C-71 by the proposed extended deadline. The court will then make a final decision on the full extension to Dec. 19.

The “second generation” cut-off against Canadians born abroad was first introduced by the then Conservative government, which also removed the so-called “connection test” for these descendants to reclaim citizenship based on their ties to Canada. Despite several amendments to the act, there remain many lost Canadians.

Source: Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch

CBC:

So-called “lost Canadians” will have to wait longer to obtain their right to citizenship now that a court has granted the federal government more time to fix legislation it ruled was unconstitutional.

The courts initially gave the federal government until today to replace legislation that prevents Canadians born abroad from passing on their citizenship to children also born abroad.

In May, the Liberals introduced Bill C-71, which introduced sweeping changes to Canada’s citizenship laws. The government says the legislation addresses the concerns of the court.

But the Liberals did not get the bill through the House of Commons before it rose for the summer on Wednesday. MPs will not return to the Commons until mid-September.

In handing down the extension to Aug. 9 on Wednesday, Ontario Superior Court Justice Jasmine Akbarali slammed the pace of the legislation’s passage through the House. She noted that other pieces of government legislation moved swiftly to the Senate, while a citizenship bill responding to the violation of a legal right still remains in its early stages.

“I am troubled by the fact that, after taking over five months to introduce Bill C-71, in the almost-month that has passed since then, the bill has not reached second reading,” Akbarali said.

“There is no explanation as to why this bill has been languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire.”

In the meantime, Akbarali added, Canadians’ rights are being violated.

“The unconstitutional law remains on the books and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved,” the justice wrote.

Akbarali said these are not “theoretical or minor constitutional violations” but ones that could lead to “children being stateless.”

“They can lead to women having to make choices between their financial health and independence on one hand, and their physical health on the other. They can separate families,” Akbarali said in her decision.

“They can force children to stay in places that are unsafe for them. They can interfere with some of the deepest and most profound connections that human beings both enjoy and need.”

In a previous ruling, Akbarali said the current law forces women in their reproductive years to choose between travel, study and career opportunities abroad, and passing citizenship on to their children.

Thousands of so-called “Lost Canadians” have lost their citizenship, and in some cases been deported, due to a complicated section of the Citizenship Act. Now, the federal government is trying to pass new legislation to prevent people from falling through the cracks.

In December, Ontario’s Superior Court struck down Canada’s old citizenship law, Bill C-37, which prevented parents born outside Canada from passing on their citizenship to children also born abroad. The court ruled that it violated their rights under the Canadian Charter of Rights and Freedoms. It gave the government six months to enact Charter-compliant legislation.

The Liberal government said in May its legislation to respond to the judgment, Bill C-71, would fix those problems and automatically confer citizenship rights on children born since 2009 once enacted.

In granting the extension, Justice Akbarali said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19. The judge ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and “ideally” file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who fought the constitutional case for the families, called for these conditions. Choudhry estimates that the current law violates the rights of at least 1.48 million Canadians at home and living abroad.

Source: Court grants government another extension to fix unconstitutional citizenship law

CTV:

An unknown number of young people born abroad to Canadian parents could wait until at least December to be eligible for citizenship.

Last year, the Ontario Superior Court ordered Ottawa to reverse restrictions imposed by the previous Conservative government in 2009, which limited citizenship by descent to children born in Canada if their Canadian parents were born outside the country.

The court declared the 2009 change unconstitutional for creating two classes of citizens and gave Ottawa until June 19 to implement a solution. On Wednesday, the court granted the government’s request to extend that deadline to Aug. 9.

In a statement to CTVNews.ca, an Immigration, Refugees and Citizenship Canada (IRCC) spokesperson explained there were conditions attached to the new Aug. 9 deadline.

“The Judge also ordered a hearing on August 1, 2024 to determine if an extension to December 2024 would be appropriate,” the IRCC spokesperson told CTVNews.ca. “She has asked to be presented prior to the hearing with a report explaining the progress made on Bill C-71 since May 23, 2024 ‘and ideally, intended next steps to pass the bill by December 19, 2024.'”

Bill C-71(opens in a new tab), An Act to Amend the Citizenship Act, was introduced in late May(opens in a new tab). If passed, citizenship would automatically be granted to anyone affected by the 2009 change. Going forward, Canadian citizens who were born abroad will also have to spend at least three years in the country before a foreign birth or adoption to be able to pass on citizenship rights to their children.

“There’s no doubt that Canadian citizenship is highly valued and recognized around the world,” Immigration Minister Marc Miller previously said. “We want citizenship to be fair, accessible, with clear and transparent rules.”

With the House of Commons adjourning for the summer on Wednesday(opens in a new tab), the bill is expected to remain on hold until members of Parliament resume legislative business in mid-September, likely necessitating another court extension.

“Many individuals who considered themselves Canadian were excluded from citizenship simply due to their place of birth,” Toronto-based immigration consultant Al Parsai told CTVNews.ca. “By declaring it unconstitutional, the court recognized the adverse impact on Canadian families and their ties to their heritage.”

The government has no idea how many so-called “Lost Canadians” are impacted. All are aged 15 and younger.

NDP immigration critic Jenny Kwan helped draft the bill alongside the Liberals. She attempted to push it through by asking for unanimous consent from MPs, but Conservatives voted against it twice.

“I’ve talked to family members who’ve been separated from their loved ones because of this unjust law that Conservatives brought in 15 years ago,” the Vancouver East NDP MP said last month(opens in a new tab). “I’ve talked to family members where their children are deemed stateless, lost in the system, because of this unjust, punitive, unconstitutional law.”

If the federal government is not given another court extension before Bill C-71 passes, it may be up to the immigration minister himself to decide individual citizenship cases.

“If it doesn’t come through we’re sort of in no man’s land,” Miller said before Wednesday’s court extension. “Basically, it’s my discretion deciding who’s Canadian or not. Obviously, that shouldn’t be up to the discretion of a minister.”

If the bill does pass, anyone affected by the 2009 change would be able to apply online for a Canadian citizenship certificate(opens in a new tab). The government also has a digital tool that can help you find out if you are Canadian(opens in a new tab).

Parsai expects to see a surge in citizenship applications, which could strain government resources.

“The Ontario Superior Court’s ruling in 2023 was a pivotal moment, acknowledging the unfairness of the 2009 policy,” Parsai said. “This change will be immensely positive for Canadians and their families, restoring their sense of belonging and legal recognition.”

Source: Canada’s new citizenship rules for kids born abroad delayed